Have You Ever Tried to Define Creativity?

A question how constraints affect creativity has been a subject of an ongoing debate for decades. Not only psychologists, but also intellectual property law experts argue how restrictions promote or discourage creativity. Joseph Fishman’s article “Creating Around Copyright” inspired me to write how broad or narrow constraint scope contributes to increase in it.

Fishman outlines numerous interesting examples of how effective or how counter-productive limitations may be. Though, I found one scenario particularly peculiar. Fishman mentions Jon Elster’s studies, during which Elster observed that “in former Communist countries, dissident authors sought clear boundaries from censors because it would enable ‘writing around’ them; censors refused for precisely the same reason.”

I come from a former Communist country, and even though I was born after the regime had collapsed, I have noticed many cultural phenomena in my motherland that were rooted in the Communistic mindset. Elster’s research encouraged me to think if and how restrictions established in Communistic regimes affected development of intellectual property law. Again, Elster writes, “authors sought clear boundaries from censors;” therefore, their goal was to set clear-cut rules that would enable “writing around them.” They wanted to eliminate any sort of discretion imposed by the censors.

I started wondering whether intellectual property law, and specifically copyright law in Poland, allows for any form of discretion. As Poland, like all other former Communist countries, is historically a civil law country, copyright law is statutory. Unfortunately, the findings of my short analysis may not be fully determinative, as Polish copyright law has been amended in some part by the European Union directive on copyright law.

Lawyers in Poland argue that courts have significant discretion in their decisions regarding copyright law issues because of the vagueness of the statute. Thus, courts’ determinations are quite unpredictable. It seems like Poland has not had its Feist[1] precedent yet.

Article 1 of the Polish Acton Copyright and Neighboring Rights provides, “The object of copyright shall be any manifestation of creative activity of individual nature, established in any form, irrespective of its value, purpose or form of expression (work).”[2] Lawyers structure complex and creative arguments about what “creative activity” and “individual nature” are. As courts decisions are highly discretionary, authors do not have much space to “create around,” which is contrary to what authors during Communism were trying to achieve.

I discussed the issue of creativity and its constraints with my students who are all textile design major. Most of them, in fact, admitted that their creative genius works best without any constraints. They said that they understood the basics of copyright law, and they were aware of what they could not do, but there is no law about what they could do. Their assessment was similar to Fishman’s thesis that copyright law constraints are prohibitory in nature.

I would argue that it is challenging to determine whether constraints drive creativity. We yet have to find an answer what “oxygen of innovation” really is. I believe that it is crucial to understand policies regarding shaping copyright law. In the United States, copyright law often refers to Constitution as Jeanne Fromer states in the introduction of “A Psychology of Intellectual Property.” However, Poland is one of these countries where the original constitution is not longer valid, and has been rewritten multiple times. Therefore, when assessing what constrains or drives creativity in intellectual property law, it is crucial to understand a cultural and historical perspective behind establishing the law. I would say that a bit of resistance is always good to boost creative genius, and I would also agree with Justin Hughes that the solution should be “borrow some, but not borrow too much.”

Do constraints affect your creative genius?

[1] Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991) (A precedent in American jurisprudence establishing the standard of originality).
[2] Act No. 83 of February 4, 1994, on Copyright and Neighboring Rights, http://www.wipo.int/wipolex/en/text.jsp?file_id=129377#LinkTarget_308.



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